464 P.3d 497
Or. Ct. App.2020Background
- Victim had an active restraining order against Jason Strasser. While it was in force, she called 9-1-1 reporting Strasser at her home; she testified she saw him at her front door, slammed the door, and called police but did not see him leave and assumed he left on a bicycle.
- Police arrested Strasser for punitive contempt for violating the restraining order; a contempt hearing was held and a separate proceeding later converted bench probation to formal probation.
- At the contempt hearing the State called only the victim. Defense theory was that the victim had made prior inconsistent statements (that Strasser left on a bike) that could impeach her credibility.
- Defense called Officer Chong, who testified he spoke with the 9-1-1 caller (identified as the victim) and that the caller told him Strasser left on a bicycle; Chong also testified the bike shown to him had a broken chain.
- The trial court sustained the prosecutor’s hearsay objection when defense sought to elicit the specific answer that the victim (not just the “caller”) told Chong Strasser left by bicycle. The court found Strasser in contempt and explained it found the victim credible regardless of the bike evidence.
- On appeal Strasser argued the excluded testimony was admissible as extrinsic evidence of a prior inconsistent statement under OEC 613(2); the Court of Appeals assumed without deciding there may have been error but held any error was harmless because the testimony was cumulative and unlikely to affect the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chong's testimony that the victim told him Strasser left on a bicycle was admissible as extrinsic evidence of a prior inconsistent statement under OEC 613(2) | The testimony was hearsay/extrinsic and inadmissible because the witness (victim) had not been afforded the required opportunity to explain or deny the statement | The testimony was admissible under OEC 613(2); the victim remained in court and could have been recalled to explain or deny the statement; commentary relaxes timing | Assuming error, exclusion was harmless: the answer was cumulative of Chong’s prior testimony identifying the “caller” as the victim, and the court found the victim credible regardless. Affirmed. |
| Whether the claimed evidentiary error was preserved and reviewable as plain error | Error was unpreserved and not "obvious," so plain-error review should not apply | Error was preserved by defense offer and objection at trial; in any event the exclusion was wrong under OEC 613(2) | Court assumed without deciding preservation/plain-error but resolved case on harmless-error grounds and affirmed. |
Key Cases Cited
- State v. Blaylock, 267 Or App 455 (Or. 2014) (erroneous exclusion is harmless if evidence would be duplicative or unhelpful)
- State v. Lachat, 298 Or App 579 (Or. 2019) (harmless-error test: affirm despite trial error when little likelihood the error affected the verdict)
- State v. Davis, 336 Or 19 (Or. 2003) (consider the nature and context of error in harmless-error review)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (Or. 1991) (plain-error review requires the error be apparent and not reasonably in dispute)
- State v. Cunningham, 179 Or App 359 (Or. 2002) (cited regarding harmless-error assessment)
- State v. Perkins, 221 Or App 136 (Or. 2008) (evidence that merely duplicates what the factfinder already heard is harmless when excluded)